1. Collection of basic case information

Case Type: Lawyer Litigation Case

Business Category: Corporate Litigation

Court judgment date: February 26, 2014 .

Court name: People's Court of Xiangshan County, Zhejiang Province

Name of attorney: Yang Weiguo, Zeng Jun

Law firm name: Zhejiang Boning Law Firm

Contributed by: (real name, unit + name) Zeng Jun, Zhejiang Boning Law Firm

Review: (real name, level by level)

Search subject terms: obstacles to human cooperation, serious difficulties in operation and management, company deadlock, company dissolution

2. Collection of case text

Yang sued a property company in Ningbo and a third party in a dispute over the dissolution of a real estate development company in Ningbo

【Introduction to the case】

In March 2010, the plaintiff, Mr. Yang, and Mr. Bao, an outsider, jointly funded the establishment of the defendant, a property company in Ningbo, with a registered capital of 10 million yuan. In June 2010, the defendant obtained two land use rights located at the southeast corner and the northeast corner of the intersection of Hongtu Road and Baoyu Road, Chengdong Industrial Zone, Xiangshan Industrial Zone, through listing. It is stipulated in the "Contract for Assignment of State-owned Construction Land Use Rights" that if the land has been idle for two years and construction has not started, the assignor (Xiangshan County Land and Resources Bureau) has the right to recover the state-owned construction land use rights free of charge.

On August 19, 2010, the plaintiff, Mr. Bao and a third party, a real estate development company in Ningbo City, signed the "Equity Transfer Agreement", which stipulated that after the equity transfer, the equity held by the defendant's shareholders was that the plaintiff invested 3 million yuan to hold 30% The third party invested 7 million yuan to hold 70% of the equity; the defendant has paid 69 million yuan for the transfer price of the two land use rights, as well as other rights and obligations. On August 24 and August 25, 2010, the third party paid the Xiangshan County Land and Resources Bureau the remaining land transfer fee of RMB 95.3 million through a building materials company in Ningbo, an outsider.

From April to September 2011, the defendant entrusted a design company to undertake the design of the relevant engineering plans for the two land plot construction projects, and paid part of the design fees as agreed. In October of the same year, the defendant leased an office space for office needs. On October 21 of the same year, the defendant filed an application for extension of land mortgage registration with the Land and Resources Bureau of Xiangshan County on the grounds that the facility conditions were not met, and was granted a one-year extension. Since then, the defendant has carried out a number of work for the development and construction of the two land parcel projects, including seeking financing cooperation through intermediary services, entrusting relevant design companies to conduct traffic impact analysis, geotechnical engineering survey specifications, and environmental protection feasibility analysis. In November 2012, the defendant once again filed an application for a one-year extension of the land mortgage registration and an extension of the completion time on the grounds that the supporting facilities were not available, which was approved.

On September 16 and November 14, 2011, the plaintiff and the third party signed two resolutions of the shareholders' meeting, agreeing that the two land use rights under the defendant's name were respectively 95 million yuan from a building materials company in Ningbo to the Ningbo branch of Industrial Bank. Yuan Loan and a metal material company in Ningbo provided mortgage guarantees for the 31 million yuan loan of ICBC Ningbo Branch. In 2012, after the above two loans expired, the defendant once again provided mortgage guarantees for bank loans of a total of RMB 126 million for a building materials company in Ningbo and a metal material company in Ningbo with the two land use rights under its name, but the defendant offered to The name of the plaintiff on the resolution of the shareholders' meeting and the consent of the board of directors on the mortgage opinions provided by the bank was not signed by him.

In January 2013, the plaintiff filed a complaint with the Ningbo Public Security Bureau that Pang, the legal representative of the defendant, was suspected of defrauding loans. On March 15, 2013, the mortgage registration of the above two land use rights was cancelled. On March 19 of the same year, the Ningbo Public Security Bureau made a decision not to file the plaintiff's complaint. The plaintiff applied for reconsideration on March 28 of the same year, and the Ningbo Public Security Bureau issued a reconsideration decision on April 3, 2013 to uphold the original decision.

On July 22, 2013, the plaintiff filed a lawsuit, claiming that the defendant had never held a shareholders meeting since its establishment three years ago, and the cooperation among shareholders had become deadlocked. The land use rights under his name were used as a platform for his illegal financing, which caused the defendant to be in a state of no operation and management for a long time, and the plaintiff's interests suffered heavy losses. The basis of human cooperation between shareholders no longer exists, and the court is requested to order the dissolution of the defendant.

【Agent opinion】

1. The defendant has been operating normally since the third party became a major shareholder in August 2010.

1. The third party holds 70% of the defendant's equity. According to the company's articles of association and the "Company Law", as long as the shareholders' meeting is convened, the resolution of the shareholders' meeting can be passed, and the defendant will not form a deadlock in the operation and management of the company.

2. The main purpose of the defendant's establishment is to develop two pieces of land in the Chengdong Industrial Park, Xiangshan County Industrial Zone, and since 2010, the third party and the plaintiff have held several shareholder meetings for the mortgage of the above-mentioned two pieces of land and project development. , and formed the corresponding resolutions and minutes of the shareholders' meeting.

3. The defendant has a normal organizational structure, employs relevant staff for daily operation and management, conducts business around the purpose of the company's establishment, and pays most of the contract price.

4. The equity held by the third party was transferred from the plaintiff and someone outside the case, Mr. Bao. The third party has fully fulfilled the fund-raising obligations as stipulated in the equity transfer agreement, and paid RMB 4.8 million in advance for the plaintiff. Pay the plaintiff's share of overdue fines arising from the delay in paying the land transfer fee and the share of taxes and fees required to apply for the land use right certificate.

2. The continued existence of the defendant is beneficial to the interests of the two shareholders, and the dissolution of the company is unnecessary.

1. The defendant provided a mortgage guarantee for a building material company in Ningbo and a metal material company in Ningbo with the two pieces of land under its name. After the approval of the shareholders meeting, after the loan expired, the plaintiff still agreed that the defendant would continue to provide mortgage for the above-mentioned loan on-lending Guarantees and mortgage guarantees are contingent debts that do not necessarily damage the interests of the defendant and shareholders.

2. The plaintiff sued the public security organ against Pang, the legal representative of the defendant, for the crime of defrauding loans, but the public security organ did not file a case. Now the mortgage guarantee has been cancelled, and there is no situation that may damage the interests of the defendant and shareholders.

3. If the defendant is dissolved, the land development project will not be able to continue, and the defendant will face the huge risk that the land use right will be reclaimed by the government for free, and the defendant has almost no other property to liquidate except the land use right, which will ultimately damage the interests of the two shareholders. .

3. The plaintiff did not perform the supervisory duties in the operation and management of the defendant, and was at fault, and exhausting other remedies was a necessary prerequisite for the shareholders to request the dissolution of the company, and the plaintiff did not prove that it had exhausted other remedies.

To sum up, the petition to dismiss the plaintiff's claim.

【Judgment Result】

On February 26, 2014, the People's Court of Xiangshan County, Zhejiang Province rejected the plaintiff Yang's claim in a civil judgment (2013) Yong Xiang Shang Chu Zi No. 927.

【Judgment Document】

The court held that although there were certain contradictions between the defendant's two shareholders, and the company's land development project failed to start on schedule due to objective reasons, the reason for the plaintiff's request to dissolve the company was still insufficient. First of all, the plaintiff's claim that the legal representative of the defendant, Pang Mou, falsely signed the resolution of the shareholders' meeting to defraud the loan and damage the rights and interests of the shareholders. This court believes that the plaintiff has no direct evidence to prove that Pang signed the plaintiff's signature for personal gain. The public security organ also believes that the accusation brought by the plaintiff does not constitute a criminal crime and will not file the case. Now that the two mortgages have been cancelled, it may be possible The situation that damages the interests of shareholders has also been eliminated, so the basis for continued cooperation among shareholders still exists. Secondly, the defendant did not have the situation as claimed by the plaintiff that the shareholders meeting was never held within three years and no valid resolution was reached. According to the facts found in the court review, the plaintiff and the third party reached two valid resolutions of the shareholders' meeting on September 16, 2011 and November 14 of the same year. On October 25, 2011, the plaintiff, the defendant and the third party also returned For example, a progress report meeting was held for the land development project in Xiangshan Industrial Zone, and the minutes of the meeting were formed. Even if the third party or the defendant's executive director neglects to perform his duties and fails to convene the shareholders' meeting, the plaintiff, as the defendant's supervisor, can convene and preside over the shareholders' meeting according to the provisions of the company's articles of association when the executive director fails to perform his duties, and the plaintiff has never performed such a meeting. authority, indicating that it has not exhausted its remedies as it claims. Furthermore, the defendant did not appear to be unable to survive as claimed by the plaintiff in terms of business management. The company has the necessary organizational structure and staff. For the company's main industrial zone development projects, it has also completed preliminary work such as design, survey, and environmental assessment. Obligation, the situation of stagnant project development should be improved. On the contrary, if the company is dismissed rashly, the two parcels of land will be forced to cease operation. If no one takes over, the two land use rights will face the threat of being reclaimed by the government for free, which will seriously affect the company's interests. The judiciary advocates maintaining the company's existence to the greatest extent possible. It is still too early to dissolve the company when the defendant's land project is still in progress and the gap between shareholders is likely to improve. To sum up, in this case, the plaintiff Yang, the defendant, a real estate company in Ningbo, and the third party, a real estate development company in Ningbo, each had certain faults in the operation and management of the company. Taking the negative approach of dissolving the company will only lead to contradictions. more antagonistic. At present, the only way to achieve a win-win situation for both the company and its shareholders is to actively strive to improve and even eliminate the gap between each other and seek a way out. In addition, the plaintiff Yang, as a minority shareholder of the company, can also seek corresponding relief through other channels in accordance with the law if his legitimate rights and interests are damaged.

【Case Analysis】

If there is a certain contradiction between shareholders, will it inevitably lead to the dissolution of the company?

According to Article 182 of the current "Company Law", the court ordered the dissolution of a company to meet four requirements at the same time: first, the plaintiff shareholders must hold more than 10% of the voting rights of all shareholders of the company; second, serious difficulties in the operation and management of the company; third Third, the continued existence will cause great losses to the interests of shareholders; fourth, it cannot be resolved through other means. Among them, "serious difficulties in the operation and management of the company" are the core elements.

Guiding Case No. 8 "Lin Fangqing v. Changshu Kailai Industrial Co., Ltd. and Dai Xiaoming Company Dissolution Dissolution" issued by the Supreme People's Court established the following key points of judgment: To judge "whether serious difficulties have occurred in the operation and management of the company", it should be based on the company's organizational structure. Comprehensive analysis of operating status. If the shareholder meeting mechanism fails for a long time, the internal management has serious obstacles, and has fallen into a deadlock state, it can be regarded as a serious difficulty in the company's operation and management. The people's court may decide to dissolve the company in accordance with the law if it meets other conditions stipulated in the Company Law and relevant judicial interpretations. That is to say, how to determine "serious difficulties in the operation and management of the company" in the judicial dissolution of a company, the Supreme Court has determined the adjudication rules with "personal barriers" as the core consideration factor.

When a shareholder files a lawsuit to dissolve the company, it is difficult for the court to argue that the company does not have a "personal barrier", but the existence of a "personal barrier" does not necessarily lead to the dissolution of the company. Article 1 of "Interpretation II of the Company Law" stipulates four reasons for "serious difficulties in the operation and management of the company": (1) the company cannot hold a general meeting of shareholders or a general meeting for more than two years, and the company has serious difficulties in the operation and management of the company; (2) ) Shareholders cannot reach the ratio stipulated by law or the company's articles of association when voting, cannot make valid shareholders' meeting or shareholders' meeting resolutions for more than two years, and the company's operation and management have serious difficulties; (4) Other serious difficulties occur in the operation and management of the company, and the continued existence of the company will cause major losses to the interests of shareholders. Only if one of the above-mentioned four reasons exists, can the company be identified as having a "personal barrier".

In this case, the third party, as the controlling shareholder (accounting for 70% of the equity), has held more than two-thirds of the equity. According to the provisions of the defendant's articles of association and the "Company Law", a valid resolution of the shareholders' meeting can be formed; the third party and the plaintiff Several shareholder meetings were held due to land mortgage and project development issues, and the corresponding resolutions and meeting minutes were formed; the defendant has the necessary organizational structure and staff, and the company's main project preliminary work has also been completed, so the defendant will not appear The deadlock of the shareholders meeting does not belong to "serious difficulties in the operation and management of the company". Considering the two directions of the company's existence and dissolution, dissolution will increase the risk of the defendant's project land being reclaimed by the government free of charge, while the existence of the company is more conducive to the interests of shareholders. At the same time, the plaintiff did not exhaust other remedies, nor did it fulfill its supervisory duties, so there was a certain fault. In conclusion, there is no reason why the defendant should be dissolved.

Although the defendant in this case has certain obstacles to cooperation, the agent has demonstrated the legitimacy and rationality of the company's continued existence by analyzing the constituent elements of the company's judicial dissolution system, comprehensively considering the interests of the company and its shareholders, and the facts and reasons stated are all It was adopted by the court, effectively safeguarding the interests of the company and its shareholders.

【Conclusion and Recommendations】

How small shareholders can protect their own interests and prevent large shareholders from abusing company control to manipulate the company or even damage the interests of small shareholders has always been a difficult problem in the corporate governance structure. In the event of a company deadlock, minority shareholders can file lawsuits for shareholder right to know disputes, company resolution disputes, company earnings distribution disputes, requests for companies to acquire shares, and disputes over liability for damage to shareholders' interests to safeguard their own interests. Judicial forcible dissolution of a company is the most severe measure for judicial intervention in the corporate governance system, and its direct consequence is the demise of the main body of the company. Therefore, the law has strict regulations on the constituent elements of a company dissolution lawsuit, requiring minority shareholders to exhaust other remedies before filing a company dissolution lawsuit.

When minority shareholders are unable to protect their own interests after exhausting other remedies, they can file a lawsuit to dissolve the company, and use this as a bargaining chip to maximize their interests. When the court deals with a company dissolution dispute, it will generally conduct mediation first. During this process, the plaintiff can make its own corporate governance claims or equity transfer consideration. If the company is at risk of judicial dissolution, the major shareholder will usually carefully consider the plaintiff’s appeal. .

When the major shareholder owns 51% of the equity, it is still not enough to avoid the risk of judicial dissolution of the company. They can try to obtain more than two-thirds of the equity or stipulate special clauses or special voting rights in the articles of association to avoid the failure of the company's organizational structure and the formation of a company deadlock.